a

GAO

United States General Accounting Office

Report to the Chairman, Committee on 

Governmental Affairs, U.S. Senate

July 2003 FEDERAL 

VACANCIES REFORM 

ACT

Key Elements for 

Agency Procedures for 

Complying with the 

Act

GAO-03-806
DRAFT REPORT: GA-03-806 Vacancies Reform Act Compliance 

The six departments GAO reviewed had Vacancies Reform Act 

compliance systems that varied. Regardless of how the agencies had 

assigned responsibilities, GAO identified five key elements essential to 

Vacancies Reform Act compliance. 

 

One critical element is that agencies identify the specific components or 

branches that will be responsible for Vacancies Reform Act 

requirements. Agencies should also specify the functions that these key 

units perform and how they interact with other key components to 

achieve the overall Vacancies Reform Act compliance objective. 

A second critical element is that staff in the various components that play 

a role in Vacancies Reform Act compliance must frequently communicate 

with each other. There may be several agency components involved in 

the compliance process and one component may have critical 

information, such as the occurrence of a vacancy, that the component 

responsible for reporting this event to Congress needs to know. 

Frequent communication helps ensure that information is shared and 

acted on in a timely manner. 

A third critical element is that the agency maintains an up-to-date list of 

the first assistants for each of its PAS positions. When a vacancy occurs 

the Vacancies Reform Act provides that the first assistant will serve as 

the acting official in the absence of a designation by the President. 

Having an up-to-date list helps ensure timely placement, continuity of 

operations, and compliance with qualifications criteria for acting PAS 

officials prescribed by the Vacancies Reform Act. 

A fourth critical element is that agencies document their Vacancies 

Reform Act procedures. Documenting compliance procedures provides 

agencies a means of ensuring that new staff assigned to compliance tasks 

will have guidance on how to perform these tasks. This will also help 

ensure a consistent application of the process, reduce the learning period 

required, and provide for a better continuity of effort. 

Finally, agencies should assign Vacancies Reform Act responsibilities to 

career employees. This would also help to provide continuity to the 

agencies’ compliance activities, because, typically, political employees, 

who may be assigned this function, would not be very familiar with the 

act’s requirements when they report for duty. This can lead to delays or 

errors in Vacancies Reform Act compliance. Agency officials cited a 

number of examples where it took replacement staff a while to get up to 

speed which resulted in long delays in reporting vacancy events. 

The Federal Vacancies Reform Act 

of 1998 sets requirements for 

reporting to Congress and the 

Comptroller General actions 

related to Presidential 

Appointment with Senate 

Confirmation (PAS) positions as 

well as the qualifications for and 

term limits on acting PAS officers. 

GAO had reviewed agencies’ 

performance in implementing the 

Vacancies Reform Act and found 

substantial problems with their 

reporting timeliness and 

compliance with term limits for 

acting officials. In this current 

effort, GAO looked at agencies’ 

procedures to identify approaches 

that could be applied across the 

government to help assure effective

implementation of the act. 

GAO recommends that the Office 

of Presidential Personnel 

encourage federal agencies to 

implement the five key elements 

for Vacancies Reform Act 

compliance that GAO identified. 

The Office of Counsel to the 

President commented on the report 

and said he would prefer that GAO 

make the recommendation to all 

agencies with PAS positions 

covered by the Vacancies Reform 

Act rather than to the Office of 

Presidential Personnel. 

FEDERAL VACANCIES REFORM ACT

Key Elements for Agency Procedures for 

Complying with the Act 

www.gao.gov/cgi-bin/getrpt?GAO-03-806.

To view the full report, including the scope 

and methodology, click on the link above. 

For more information, contact Victor 

Rezendes at (202) 512-6806 or 

rezendesv@gao.gov. 

Highlights of GAO-03-806, a report to the 

Chairman, Committee on Governmental 

Affairs, U. S. Senate 

July 2003
Page 1 GAO-03-806 Vacancies Reform Act Compliance

United States General Accounting Office

Washington, D.C. 20548

A

July 15, 2003 Letr

The Honorable Susan M. Collins 

Chairman 

Committee on Governmental Affairs

United States Senate

Dear Chairman Collins:

The Federal Vacancies Reform Act of 19981 sets requirements for reporting 

to Congress and the Comptroller General actions related to vacancies in 

Presidential Appointment with Senate Confirmation (PAS) positions as 

well as standards for who can be named to act in these positions when they 

are vacant and how long acting officers can serve. In response to an 

August 1999 request from Senator Fred Thompson, then Chairman of the 

Committee on Governmental Affairs, we issued a series of reports that 

examined agencies’ performance in implementing the Vacancies Reform 

Act. We found substantial lags between the times a reportable event, such 

as the naming of an acting officer, occurred and the time it was reported, as 

well as events that were not reported at all. We also identified instances 

where acting officers exceeded the legally allowed maximum period for 

serving in that capacity.2

 In this effort, we agreed with Senator Thompson’s 

office to look at agencies’ procedures for implementing the act’s 

requirements and identify any approaches that facilitate prompt and 

accurate compliance with the act’s provisions that could be applied across 

the government.

The key requirements the act placed on agencies are to (1) report 

immediately to Congress and the Comptroller General any vacancy in a 

PAS position, the name of an individual serving in an acting capacity in a 

PAS position, the date the vacancy occurred, and the name and date of a 

nomination for a PAS position and the date of rejection, withdrawal, or 

return of any nomination, (2) ensure that persons named to serve in acting 

1

5 U.S.C. 3345-3349d. 

2

For example, see U.S General Accounting Office, Violations of the 210-Day Limit Imposed 

by the Vacancies Reform Act, B-286265, Sept. 15, 2000; Implementation of the Federal 

Vacancies Reform Act of 1998, GAO/GGD-00-210R (Washington, D.C.: Sept. 29, 2000); 

Eligibility Criteria for Individuals to Temporarily Fill Vacant Positions Under the 

Federal Vacancies Reform Act of 1998, GAO-01-468R (Washington, D.C.: Feb. 23, 2001); and 

Presidential Appointments: Agencies’ Compliance With Provisions of the Federal 

Vacancies Reform Act of 1998, GAO-01-701 (Washington, D.C.: May 31, 2001).
Page 2 GAO-03-806 Vacancies Reform Act Compliance

capacities in PAS positions meet the eligibility requirements enumerated in 

the act, and (3) ensure that acting PAS officers do not exceed the limits 

imposed on the time they can serve. Our objective was to identify key 

elements of effective implementation of the Vacancies Reform Act.

To select agencies to review, we used data on how long it took to report 

PAS-related events to us. We selected six agencies that had numerous 

reportable events and relatively short periods, in at least some cases, 

between events occurring and reporting on the events. We selected the 

Departments of Commerce, Education, Energy, Health and Human 

Services, Transportation, and the Treasury. We visited each agency and met 

with the officials involved in implementing the act and discussed their 

procedures. We obtained, where available, documentation about the steps 

the agencies used. We combined the information obtained at the agencies 

to look for common elements that seem to be critical to effective 

implementation of the Vacancies Reform Act. Our work was performed 

from January 2002 through May 2003 in accordance with generally 

accepted government auditing standards.

Results in Brief The reviewed agencies’ Vacancies Reform Act compliance systems varied. 

We found variation in the components within each agency assigned primary 

responsibility for Vacancies Reform Act functions and variation in the 

specific tasks performed by the responsible components to meet the 

requirements of the act. Regardless of how the agencies had assigned 

responsibilities, we identified five critical elements that are essential to 

Vacancies Reform Act compliance. 

The first critical element is for agencies to clearly identify the component 

responsible for each requirement under the act and the other components 

that assist by providing information. All the agencies that we visited agreed 

that this was important. Unless everyone is aware of who does what, it is 

easy to assume that another component or staff person will handle a 

requirement resulting in tasks being delayed or going undone.

A second critical element, which is a corollary to the first one, is that staff 

in the various components that play a role in Vacancies Reform Act 

compliance frequently communicate with each other. Agencies cited a 

number of examples where the first component or person to learn about a 

reportable event was not the one responsible for reporting the event. Thus, 

it is essential to timely reporting that information is shared in a timely 

manner. Agencies cited mechanisms like frequent telephone contacts or 
Page 3 GAO-03-806 Vacancies Reform Act Compliance

weekly meetings of involved staff as ways to ensure that the right people 

are informed about events.

A third critical element, which is related to ensuring that only qualified 

people are made acting officers, is that agencies have up-to-date lists of the 

first assistants to each PAS position. The Vacancies Reform Act specifies 

that the first assistant becomes the acting officer unless the President 

directs someone else who meets one of the listed qualifications to serve in 

that role. Normally, first assistants become the acting officer, and without 

an up-to-date list, delays in naming an acting officer can occur and the 

possibility exists that an ineligible person could be designated. 

A fourth critical element is that agencies document their Vacancies Reform 

Act procedures. Although none of the six agencies had done so when we 

first visited them, all agreed that documenting procedures would help 

agencies ensure compliance during periods of transition. For example, 

when staff responsible for Vacancies Reform Act functions leave or are 

reassigned, written procedures will let replacement staff know it is their 

responsibility to perform the functions and will represent guidelines on 

how to meet the responsibility. The officials at all the agencies we visited 

agreed on the importance of documenting their procedures and cited cases 

where a lack of such documentation had adversely affected compliance 

performance. By the end of our fieldwork, all six agencies had begun 

efforts and made progress in documenting their procedures.

Finally, agencies should assign Vacancies Reform Act responsibilities to 

career employees. This would help provide continuity to the agencies’ 

compliance activities. Typically, political employees would not be very 

familiar with the act’s requirements when they report for duty and they 

have a number of other duties that constitute their primary focus and 

interest. This can lead to delays or errors in Vacancies Reform Act 

compliance. Moreover, political employees tend to turn over more rapidly 

than career employees, thus resulting in less continuity. The agencies we 

visited had a number of examples in which political employees, such as 

White House liaisons, responsible for certain Vacancies Reform Act 

requirements, left and it took their replacements a while to get up to speed 

because of the press of other matters with, for example, long delays in 

reporting vacancy events resulting. This was especially true at the change 

of administration when many vacancy events occur and those without 

Vacancies Reform Act experience took over responsibility for compliance. 

Problems were compounded by the lack of written procedures, as 
Page 4 GAO-03-806 Vacancies Reform Act Compliance

discussed above, which meant new arrivals had little or no information 

from which to start.

We recommend that the Office of Presidential Personnel, which has 

responsibilities related to PAS positions governmentwide, encourage all 

federal agencies to ensure that their Vacancies Reform Act compliance 

standard operating procedures include the key elements identified in this 

report. The Office of Counsel to the President commented on the report 

and said that the five key elements for effective implementation of the 

Vacancies Reform Act were reasonable efforts for agencies to undertake 

but that it would prefer that we address the recommendation to all the 

agencies with PAS positions covered by the act. We continue to believe 

that it is appropriate for the Office of Presidential Personnel to encourage 

agencies to implement the key elements.

Background Under the Vacancies Reform Act, if a presidential appointee covered by the 

act dies, resigns, or is otherwise unable to perform the functions and duties 

of the office, the requirements of the act must be followed. For covered 

PAS vacancies,3

 the act, among other things,

• requires agencies to immediately report to the Senate, the House of 

Representatives, and the Comptroller General changes in PAS positions, 

including a vacancy and the date it occurs, the name of any person 

serving in an acting capacity and the date such service began, the name 

of any person nominated to fill a vacancy and the date such nomination 

is submitted to the Senate, and any rejection, withdrawal, or return of a 

nomination and the related date; 

• specifies who may serve as acting officer; and

• imposes a time limit on how long vacancies can be filled by acting 

officers.

The act specifies four classes of individuals who may serve in an acting 

capacity.

3

Some PAS positions are not covered by the act. For example, the act does not apply to U.S. 

attorneys and ambassadors or to members of independent commissions, such as the 

Securities and Exchange Commission.
Page 5 GAO-03-806 Vacancies Reform Act Compliance

• The first assistant to the office of the officer who has left the position 

vacant temporarily performs the functions and duties of the PAS 

position in an acting capacity subject to the act’s time limitations unless 

the President directs someone else to do so under one of the authorities 

discussed below. 

• A PAS official may serve as an acting official in another PAS position at 

the direction of the President.

• The President may designate a senior agency official to serve as the 

acting official for a vacant PAS position. The senior agency official must 

be from the same agency in which the vacancy occurs and the official’s 

rate of pay must have been equal to or greater than the minimum level of 

GS-15 for at least 90 days during the year preceding the vacancy.

• For PAS positions that have limited terms of service (such as those at 

independent commissions), officers who are nominated by the 

President for additional terms to the same offices without breaks in 

service may continue to serve temporarily in those positions in acting 

capacities.

In addition, the Vacancies Reform Act limits the service of acting officials 

to 210 days beginning on the date the vacancy occurred. At the end of the 

time limit, no one may serve in the position on an acting basis. The 

Vacancies Reform Act extends or resets the 210-day period under certain 

circumstances, such as suspending the time limit when a nomination is 

pending before the Senate and extending the limit by 90 days with respect 

to any vacancy existing during the 60-day period beginning at the start of a 

new administration. The Vacancies Reform Act also requires us to inform 

specified congressional committees, the President, and the Office of 

Personnel Management if an acting officer has served longer than 210 days.

In fulfilling Vacancies Reform Act responsibilities, agencies should make 

managers aware of these statutory requirements and assign staff to ensure 

that the requirements are followed and reporting is completed in a timely 

manner. Hence, along with their responsibility to timely report changes in 

PAS positions to Congress and the Comptroller General, it is incumbent 

upon agencies to establish effective processes that ensure that persons 

serving temporarily in PAS positions meet the statutory qualifications 

prescribed by the act and that they do not exceed the act’s time limit for the 

service of acting PAS officials.
Page 6 GAO-03-806 Vacancies Reform Act Compliance

The Vacancies Reform Act was passed to ensure a clear understanding of 

what is to be done when PAS positions become vacant. These positions 

constitute the highest level of staff in the federal executive branch, 

including the secretaries for cabinet-level departments and their deputy 

and assistant secretaries. Because most of these executives typically have 

relatively short tenures, positions often are vacated during a Presidential 

term of office. At a change of administration, virtually all PAS positions 

are vacated.

After the passage of the Vacancies Reform Act, we together with the 

executive branch developed a form, Submission Under the Federal 

Vacancies Reform Act, which the White House instructed agencies to use 

beginning in July 1999 to notify Congress and GAO of the reportable events 

under the Vacancies Reform Act. We also developed a computerized 

tracking system to collect and analyze data submitted by agencies. We 

receive agencies’ reports and enter the data in our tracking system.

The White House’s Office of Presidential Personnel (OPP) has traditionally 

assumed the role of recruiting candidates to fill executive appointments. 

OPP collaborates with the Counsel to the President to issue policy 

memorandums to guide agencies in fulfilling Vacancies Reform Act 

requirements. For instance, in March 2001, the Counsel to the President 

sent a memorandum to federal executive branch departments and agencies 

that provided guidance that streamlined the notification process by 

requiring that agencies send notifications directly to Congress and GAO. 

Previously, agencies were required to send notifications through an indirect 

route that began with submission to OPP, which then forwarded copies of 

the submission to the Office of Management and Budget. This streamlined 

process was expected to be more efficient.

Our May 2001 report found that agencies had not promptly reported 

vacancies and acting officials to Congress and us. In fact, of 90 reportable 

events among 21 agencies during a nearly 2-year period, 19 percent of 

vacancies and 24 percent of acting officials had not been reported at all. 

Moreover, for about half the instances that were reported to GAO and 

entered into our tracking system, notification was not received until over 4 

weeks after the date of occurrence. Thus, it was apparent that agencies 

had lax compliance with the reporting requirements of the act. 

In addition, we identified five instances where officials exceeded the act’s 

time limit. In May 2001, we reported that acting officials at four agencies 

had exceeded the act’s 210-day time limit. We also reported in March 2002 
Page 7 GAO-03-806 Vacancies Reform Act Compliance

that an acting general counsel at a federal department had exceeded the 

time limit. Also, in a November 2001 letter from our General Counsel to the 

Counsel to the President, we alerted the White House that our records 

indicated the time limits for some 19 acting PAS officials would expire 

within 1 week and appropriate action should be taken by affected agencies 

to ensure that the time limit was not violated. Subsequent actions were 

taken to ensure no violations occurred. 

Because our reports concerning the timeliness of agency reporting and our 

finding that a number of acting officials had exceeded the time limit 

suggest that there were problems with the adequacy of the procedures that 

agencies use to comply with the act, Senator Thompson, then Chairman of 

the Senate Committee on Governmental Affairs, asked us to look for ways 

to facilitate agency compliance. We looked for effective ways that agencies 

could implement the act’s requirements by both identifying agency 

procedures already in use and additional procedures that could address 

problems agencies were having. 

Critical Elements for 

an Effective Vacancies 

Reform Act 

Compliance System

The structure and particulars of Vacancies Reform Act compliance 

processes varied among the agencies that we visited, as did specific steps 

taken to ensure that the agencies adhered to the basic requirements of the 

act. However, we identified certain critical elements essential to Vacancies 

Reform Act compliance that all agencies should find useful. These 

elements are that, in developing and implementing procedures, agencies 

should (1) identify and designate the agency components that should take 

the lead responsibility for performing each Vacancies Reform Act 

requirement, (2) have frequent communication among key role players, 

(3) maintain up-to-date lists of first assistants, (4) document agency 

procedures, and (5) assign responsibility for Vacancies Reform Act 

compliance to senior career officials to help ensure continuity. 

Identify Agency 

Components with Vacancies 

Reform Act Implementation 

Roles

To establish roles and responsibilities among the various people involved 

with Vacancies Reform Act compliance functions, agencies should clearly 

identify the components that are responsible for compliance with each 

requirement of the act and the other components that assist by providing 

information. The individual positions in each of the components whose 

incumbents are responsible for Vacancies Reform Act functions should 

also be identified. If an agency does not identify specific components that 

are responsible for specific compliance efforts, it risks that tasks will not 
Page 8 GAO-03-806 Vacancies Reform Act Compliance

be completed. For example, one component of an agency could, 

erroneously, assume that another component is responsible for fulfilling a 

Vacancy Reform Act requirement while that component assumes that the 

other is responsible. As a result, neither component performs the function 

so it does not get done or is not timely completed. 

The six agencies in our survey all provided evidence that they appreciated 

the importance of designating lead components for each function because 

each agency had in effect done so. Agencies described how assigning 

responsibility for Vacancies Reform Act compliance to specific 

components helped prevent problems from arising. For example, at the 

Department of Transportation, an official in its Office of General Counsel 

had responsibility for ensuring compliance with all requirements under the 

act. This official developed and transmitted reports of changes in PAS 

positions to Congress and us and was responsible for ensuring that the 

qualifications and time limit requirements for acting PAS officials were 

met. Other staff, such as those in the agency’s Personnel and Legislative 

Affairs offices, assisted this individual by sharing information, as it became 

available, on PAS position changes. 

Another example was found at the Department of Energy where specified 

staff in the Executive Resources Office were responsible for reporting 

changes in PAS positions, and a designated attorney in Energy’s Office of 

General Counsel advised them about the acting officers’ qualifications and 

kept a log of when time limits would expire. 

Role Players Should 

Regularly Communicate 

with Each Other

Another critical element is that staff in the various components that play a 

role in Vacancies Reform Act compliance communicate frequently with 

each other. For example, because the individual who is responsible for 

reporting the event (or tracking acting officers’ time limits) may not be the 

first to learn about a reportable event (or one that affects the time limit on 

an acting officer), communication is essential to ensure compliance. 

We learned that there were often variations in which an agency official is 

the first to become aware of a reportable event. This information must be 

quickly communicated to the responsible component and to the specific 

staff member who is to report the event for timely reporting. Officials at 

agencies described how constant communication had been an effective 

tool in achieving compliance objectives. For example, at Energy, to ensure 

that acting PAS officers do not exceed the time limit, an Office of General 

Counsel official said that she establishes the time limit for each acting PAS 
Page 9 GAO-03-806 Vacancies Reform Act Compliance

officer when he or she is initially designated. The staff involved in 

Vacancies Reform Act functions meet weekly. During the meetings, events 

that affect the time limit come up and the Office of General Counsel official 

adjusts the limit accordingly. Also, reportable events are discussed at the 

meeting, which helps ensure that they get reported quickly. 

At Transportation, the key official responsible for Vacancies Reform Act 

compliance relies on different sources to inform her of events that would 

trigger the need to report. She said she is sometimes informed of 

nominations by staff in the Office of the Secretary or by contacts within the 

White House. She said a Human Resources Specialist who works with the 

agency’s PAS staff first informs her of PAS vacancies. She said that these 

people routinely call her about reportable events. Otherwise, timely 

reporting would not be possible.

Agency Officials Should 

Prepare First Assistant Lists

A third critical element is that the agency prepare and maintain a list of the 

first assistants for each of its PAS positions. Under the Vacancies Reform 

Act, the first assistant is automatically eligible to serve in a vacant PAS 

position in an acting capacity. The first assistant is usually a deputy who 

can fill in when a confirmed official vacates a PAS position. However, the 

first assistant to a PAS official must be clearly established for this provision 

to be properly implemented. When a position has been designated as a first 

assistant, this can ensure the timely securing of a qualified person as an 

acting official to a PAS position and helps provide for the agency’s 

continuity of operations. 

For example, at Transportation the key Vacancies Reform Act compliance 

official said ensuring that only qualified persons are appointed to serve as 

acting PAS officers is not a big concern because the department has made a 

conscious effort to ensure that a first assistant has been designated for 

each PAS position. The Department of the Treasury codified its first 

assistant designation procedures in the Code of Federal Regulations. In 31 

C.F.R. 18.1, Treasury’s regulation states that the deputy to the PAS officer, 

or the principle deputy when there is more than one, shall be the first 

assistant. 

Without a list of first assistants, it might not be clear who is the first 

assistant to a PAS position. For example, at the Department of Commerce, 

an official said he strongly believes that a first assistant list is essential to 

filling vacancies expediently. This official said he remembered Commerce 

was in a quandary when there were three deputies for a particular vacant 
Page 10 GAO-03-806 Vacancies Reform Act Compliance

PAS position, and the agency was unsure which should serve as the acting 

official. He said that had there been a first assistant list, there would have 

been no doubt or confusion because one of these individuals would have 

been predesignated as the first assistant. 

Following our discussion about written procedures, on July 9, 2002, 

Commerce’s Office of General Counsel sent a policy memorandum to the 

Assistant Secretary for Legislative and International Affairs, who had 

overall oversight of Vacancies Reform Act compliance, for distribution to 

other key compliance role players in the agency. The memorandum listed 

procedures for complying with the act’s requirements, including 

instructions on selecting persons to serve in acting PAS positions and the 

related reporting requirement for this event. This guidance provides for 

selecting the designated first assistant automatically and immediately for a 

vacant position without the need for further action by the department. This 

guidance lists all of Commerce’s 26 PAS positions and 20 accompanying 

first assistant positions. It adds that in instances when there are no first 

assistants (6 positions), the President will need to designate acting officers. 

The guidance also says that Commerce’s Office of White House Liaison is to 

report to Congress and us the designation of an acting officer immediately. 

Such guidance provides clear instructions on how staff are to use the first 

assistant register to designate acting officers and provides a mechanism for 

immediate reporting of events. 

Agencies Should Document 

Implementation Procedures

A fourth critical element we identified is the need for agencies to document 

their Vacancies Reform Act procedures. By documenting procedures, 

agencies can ensure that when staff responsible for Vacancies Reform Act 

functions leave or are reassigned, replacement staff will know their 

responsibilities and have guidelines on how to meet their responsibilities. 

When we began our work, none of the agencies we visited had documented 

procedures but all agreed that doing so would be a good idea, and agencies 

had either completed or begun to do so when we finished our work. 

An official at the Department of Health and Human Services (HHS) said the 

person responsible for Vacancies Reform Act compliance under the 

previous administration had produced detailed procedures that he 

followed to ensure that his work complied with the Vacancies Reform Act. 

She said that this person’s documented procedures were not a part of the 

agency’s formal operating procedures. Instead they were this individual’s 

personal notes. She also said that she was not aware of the specific steps 

outlined in the procedures. The agency had been considerably more timely 
Page 11 GAO-03-806 Vacancies Reform Act Compliance

in reporting events before the person left. After he left, the average time to 

report events increased by more than 2 weeks. She said that she had been 

briefed on compliance functions by an agency official but had not been 

provided any written guidance and believed that she could have learned 

required tasks more quickly had she had documented procedures to follow. 

This case demonstrates how a period of learning might result in delays in 

reporting events and reinforces the importance of having formal 

documented procedures.

As previously mentioned, Commerce officials issued a policy memorandum 

to provide guidance to staff who have key roles in Vacancies Reform Act 

compliance. This guidance identifies the specific Commerce components 

that play roles in compliance and outlines for staff in these components 

how to perform required tasks. This guidance makes officials aware of how 

information is to be shared and transmitted to staff that are to act on 

completing Vacancies Reform Act requirements. 

The guidance also provides background information and discussion that 

provides a sense of why tasks are to be performed. For instance, it states 

“The act requires that notification is to be provided immediately upon the 

occurrence of each of the triggering events.” It lists each triggering event, 

including vacancies, selections of acting officials, and nominations; 

provides detailed information on which agency component is likely to be 

first informed of a specific event; and asks that other components 

cooperate by sharing and transmitting this information to the Commerce 

unit responsible for reporting it. This guidance also provides helpful 

information on complying with the act’s qualifications criteria for acting 

officials and the time limit for service by acting officials. By documenting 

its Vacancies Reform Act compliance procedures, Commerce has provided 

a tool for use by new staff and has virtually eliminated the possibility of 

confusion by components about their responsibilities in this area. 

Treasury officials have also made progress in developing comprehensive 

documented procedures that specifically describe the agency’s procedures 

for complying with each key requirement of the Vacancies Reform Act. 

Treasury has segmented its procedures into two sections  reporting and 

tracking. Under its reporting section, its procedures begin with 

background information that states the purpose and objectives of the 

Vacancies Reform Act, which provides a perspective to staff on why certain 

tasks are required. It goes on to list the specific Treasury offices and their 

roles in notifying each other and reporting to Congress and us information 

on PAS vacancies, selections of acting PAS officials, and nominations. 
Page 12 GAO-03-806 Vacancies Reform Act Compliance

Reporting section procedures also require that, before Vacancies Reform 

Act reports are sent to Congress and us, the reports undergo a managerial 

review for compliance with the Vacancies Reform Act’s requirements. The 

procedures also include a requirement that the agency’s legal staff review 

selections of acting PAS officials to ensure that they meet the eligibility 

criteria contained in the Vacancies Reform Act. 

In its tracking section, Treasury’s procedures contain steps that staff 

should follow to ensure that acting PAS officials do not exceed the act’s 

210-day time limit. The procedures specify that a designated office will 

maintain a tickler system that will, essentially, establish dates when an 

acting officer will reach the time limit, establish a provision for adjusting 

the time limit when events occur that require adjustment, and allow for 

adequate prenotification that a time limit threshold is nearing.

Agencies Should Assign the 

Act’s Implementation 

Responsibilities to Senior 

Career Employees 

A final critical element provides for continuity for Vacancies Reform Act 

compliance functions by placing the responsibility for them with career 

employees. As currently practiced, newly appointed political employees 

sometimes assume the responsibility for Vacancies Reform Act compliance 

at the change of administrations and periodically during an administration. 

Because they are new to this function and not experienced with its 

requirements, they may spend a substantial period learning what must be 

done. Moreover, they have other responsibilities that constitute their 

primary focus. This can contribute, for example, to untimely reporting of 

events as incoming staff learn their responsibilities and how to fulfill them. 

Assigning senior career employees the responsibility for Vacancies Reform 

Act compliance could help ensure continuity because turnover is typically 

much lower with career employees. This should in turn facilitate the 

agencies’ efforts to better achieve timely Vacancies Reform Act reporting 

as well as provide greater assurance that agencies comply with 

requirements for acting officials, which are especially important at the 

change of administrations. 
Page 13 GAO-03-806 Vacancies Reform Act Compliance

The need to assign career staff to certain tasks that require institutional 

knowledge and continuity of effort was included in governmentwide 

management reforms proposed to address long-standing management 

problems in the federal government.4

 In September 2002 we convened a 

panel of current and recent executive branch executives and combined 

their ideas on alternative executive branch management methods that 

might address the loss of institutional knowledge required to perform 

certain agency tasks. We issued a report on the principle conclusions 

reached by the panel, and the need to institutionalize accountability for 

addressing management issues and leading transformational change was 

one of the panel’s chief observations. The panel asserted that in the federal 

government, the frequent turnover of the political leadership has often 

made it difficult to obtain the sustained and inspired attention required to 

make needed changes. This concern also applies to Vacancies Reform Act 

compliance, and designating a senior career employee as responsible 

would lessen concern.

The Department of Education has given Vacancies Reform Act compliance 

responsibility to political employees responsible for other duties 

associated with White House liaison offices, such as serving as the person 

who interfaces with the White House. Reporting had not been timely. For 

instance, the average time to report vacancies for Education was over 150 

days because the vacancies that occurred at the change of administration 

in January 2001 were not reported until June of that year.

Commerce officials offer an example of how an experienced career staff 

person can effectively implement Vacancies Reform Act compliance duties 

and reduce the chance of disruptions attributable to changes in 

administrations. The Commerce career official who has key Vacancies 

Reform Act compliance responsibilities reports to a political employee who 

has overall responsibility for this function but who, because of her need to 

focus on other matters, relies on the career employee to perform Vacancies 

Reform Act compliance duties. The career employee said she has been at 

the agency for an extended period and has been responsible for reporting 

Vacancies Reform Act events since the act’s effective date in 1998. 

4

See U.S. General Accounting Office, Highlights of a GAO Roundtable: The Chief Operating 

Officer Concept: A Potential Strategy to Address Federal Governance Challenges, GAO-03-

192SP (Washington, D.C.: Oct. 4, 2002).
Page 14 GAO-03-806 Vacancies Reform Act Compliance

Conclusions Our past reviews of agencies’ performance in implementing the Vacancies 

Reform Act disclosed that agencies, generally, had not been promptly 

meeting the act’s reporting requirements. We also found instances in which 

agencies had violated the act’s time limit requirements. As a result, we 

undertook this review to identify how agencies could better ensure 

compliance. We found five critical elements that we believe would help 

agencies effectively implement the Vacancies Reform Act. We believe that 

by incorporating these measures in their compliance programs, agencies’ 

overall performance should improve. We are suggesting that agencies 

• identify the agency components and the specific roles they play in 

fulfilling Vacancies Reform Act functions,

• engage in frequent communication among key staff so that information 

that might be needed for prompt reporting is shared,

• maintain up-to-date first assistant lists to help ensure that qualified 

individuals are selected as acting officials and that the selections are 

reported expeditiously, 

• document their compliance procedures so that newly assigned staff are 

aware of required tasks and a measure of continuity of effort is 

achieved, and

• assign senior career officials responsibility for Vacancies Reform Act 

compliance to provide for more continuity of effort and sustain a level 

of needed institutional knowledge.

Recommendation for 

Executive Action

We recommend that the Director, Office of Presidential Personnel (OPP), 

encourage all agencies in the executive branch to ensure that their 

Vacancies Reform Act procedures include the critical elements identified in 

this report. 

Agency Comments and 

Our Evaluation

On June 20, 2003, the Associate Counsel to the President commented on a 

draft of this report. He said that it would be preferable for us to address 

our recommendation to each federal agency that has PAS positions covered 

by the Vacancies Reform Act because the Bush administration has 

determined that each covered agency should assume responsibility for 

compliance with the act. The Associate Counsel cited as the source for this 
Page 15 GAO-03-806 Vacancies Reform Act Compliance

determination the March 20, 2001, memorandum from the Counsel to the 

President to all executive departments and agencies, which among other 

things, removed OPP from the Vacancies Reform Act reporting process.

We discussed the March 20, 2001 memorandum in this report and cited it in 

our earlier work as a good step toward improving the timeliness of 

reporting events covered by the Vacancies Reform Act. Our 

recommendation is not intended to bring OPP directly into the compliance 

process for the Vacancies Reform Act. Rather it is intended to use the 

office and its role as a focus point for presidential appointments to 

emphasize the importance of agencies’ compliance. That is why we used 

the phrase “encourage all agencies” in the recommendation rather than a 

phrase such as “require all agencies.”

HHS said that it agreed with the report’s findings and that it believes the 

five key elements will enable executive agencies to maintain accurate 

information and provide timely notification of events covered by the 

Vacancies Reform Act. HHS listed actions taken or under way to ensure 

that its procedures encompass all five key elements.

The Director, Office of White House Liaison at the Department of 

Education commented the Department concurred with four of the five 

elements but disagreed with the element about assigning Vacancies Reform 

Act compliance responsibilities to a senior career employee. Education 

said that it believes that the White House liaison, who currently has overall 

responsibility, is in the best position to meet these responsibilities in a 

timely manner. The department also said that it believes that implementing 

the fourth key element—having written compliance procedures—would 

meet the intent of the career employee element by providing for continuity. 

As we pointed out, political appointees have other duties that constitute 

their primary focus, and this is another reason it is important to have career 

employees responsible for Vacancies Reform Act functions. However, it is 

possible to have an effective compliance effort with a political appointee 

with overall responsibility and a career employee with day-to-day and 

operational responsibility. As discussed above, this is how compliance is 

handled at the Department of Commerce.

The Office of the Counsel to the President and the Departments of 

Education, Transportation, and the Treasury provided technical comments, 

which we incorporated in the report where appropriate. The Departments 

of Commerce and Energy did not comment within the time provided.
Page 16 GAO-03-806 Vacancies Reform Act Compliance

We are sending copies of this report to the Counsel to the President; the 

Director, Office of Presidential Personnel; and the heads of all executive 

departments and agencies and their General Counsels. We are also sending 

copies to other interested committees and parties and will make copies 

available to others on request. In addition, the report will be available at no 

charge on our Web site at http://www.gao.gov. 

If you have any questions about this report, please call me at (202) 512-

6806. Key contributors to this report were Tom Dowdal, Jeff Dawson, and 

Bruce Goddard.

Sincerely yours,

Victor S. Rezendes

Managing Director, Strategic Issues

(450097)
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